This subject deals with the many ways in which ‘the people’ are or can be involved directly in decision-making on important public issues, rather than through elected representatives. Direct involvement of the people through the use of referendums has been a familiar feature of systems of government for some time. Recently, however, new mechanisms for the involvement of the people have begun to proliferate around the world, including in Australia, of which Citizens’ Assemblies are only one example. This development is one of the most important public law issues of the present time. The subject will examine the features of representative democracy that have encouraged this development to emerge; explore the complex relationship between representation and direct popular involvement; and analyse the range of issues that arise from the use of such techniques including, for example, selection, process and the management of outcomes.

The two instructors in the subject, Tom Daly and Cheryl Saunders, have extensive experience of forms of democracy in Australia and elsewhere and are enthusiastic about exploring the significance and meaning of this emerging new field.

Principal topics will include:

• The scope of the field
• Representative government and direct public participation
• Referendums in all their forms
• Emerging techniques for direct public participation
• The issues, including terms of reference; selection, information, process, follow-up
• Comparative context
• Case studies

Human rights adjudication has expanded in many jurisdictions across the world in the past few decades. Yet there is still scepticism about the role of courts in human rights adjudication and the question whether Australia should adopt a justiciable bill of rights remains an open one. This subject will provide students with the opportunity to reflect critically on the role of courts in human rights adjudication by introducing them to the different approaches to the adjudication of human rights in a range of jurisdictions including South Africa, India, the United States, Germany, Canada, Israel, the European Union and Australia. Several key human rights issues that have arisen in different jurisdictions will be analysed and compared.

Principal topics include:

• What are human rights?
• Different approaches to judicial review of rights
• Different traditions and conceptions of constitutionalism and of rights jurisprudence
• Key issues in rights jurisprudence: hate speech, political speech, freedom of religion, equality and affirmative action, gay rights and same sex marriage, social and political rights
• Current challenges for human rights protections.

A fundamental question to be considered in every court proceeding is the character of the jurisdiction being exercised by the court - whether state or federal. Federal jurisdiction is the authority conferred upon Australian courts by the Constitution and laws made under it to adjudicate upon cases within the classes of matter set out in sections 75 and 76 of the Constitution. Whether federal jurisdiction is involved is a threshold question for the parties and for the court in any proceeding.

The subject will consider the origins and concept of federal jurisdiction, its application in the Australian judicial system and the interaction between federal, state and territory laws and the common law in the exercise of federal jurisdiction. There will be discussion of how its conferral on state and territory courts supports implications limiting the imposition or conferral on those courts of functions that are inconsistent with their institutional integrity.

The subject is not without complexity but the central principles are relatively simply explained.

The subject will be delivered by the Hon Robert French AC, former Chief Justice of Australia and before that a Justice of the Federal Court of Australia for 22 years, and Frances Gordon, barrister practising in public law at the Victorian and New South Wales Bars.

Principal topics include:

• The concept of jurisdiction and the distinction between original and appellate jurisdiction
• Federal jurisdiction, its origins, the meaning of the term and the relevant constitutional provisions conferring and authorising its conferral and statutory grants conferring federal jurisdiction
• The United States model
• The Australian court system in historical and functional perspectives
• The idea of a 'court' - when is an administrative tribunal also a court for the purposes of federal jurisdiction
• The content of federal jurisdiction - the concept of the 'matter'
• The application of state and territory laws and the common law in the exercise of federal jurisdiction
• Removal and remitter of matters between the High Court and lower courts
• The Kable case and its sequelae, a consequence of the scheme for the distribution of federal jurisdiction?
• Can federal jurisdiction be abolished.

This subject will be delivered online in 2020 over the scheduled dates.

Freedom of speech is a widely agreed upon principle in free democratic societies. However, at the same time, it is at the centre of fierce and wide-ranging disputes. This subject will examine the rationales for protection of freedom of speech and key controversies about freedom of speech. The subject will be broadly comparative, examining the legal protection of freedom of speech in Australia, Europe, Asia and North America. Jurisdictions of particular focus (in addition to Australia) will include India, Malaysia, Germany, the United States and Canada.

Principal topics include:

• Normative arguments for freedom of speech and for the regulation of speech
• The legal mechanisms for protection freedom of speech in international law and selected domestic jurisdictions
• The relationship between freedom of speech and laws regulating:
  • racial and religious vilification (including holocaust denial)
  • political protest
  • electoral funding
  • terrorism and national security.

This subject will be delivered online in 2020 over the scheduled dates.

This new subject will consider cutting-edge issues in the law governing the liability of public authorities. Government liability is a field of great practical significance for government and those who interact with government. It also raises difficult issues of theory, lying at the border of public law and private law, and complex policy questions, such as the balance to be struck between interests in individual redress and public interests including the preservation of public finances. The subject will focus on the law of Australia and common law jurisdictions.

The subject will consider significant issues that arise across the major fields of liability. Within the law of torts the course will consider: public authority negligence, including liability for regulatory failure, and of child protection agencies, police and emergency services; misfeasance in public office; malicious prosecution; private and public nuisance; trespassory torts; statutory immunities or defences that provide special protection to public authorities; particular difficulties relating to governments direct and vicarious liability; and issues in the law of damages, including the novel subject of vindicatory damages. Within the law of unjust enrichment, the subject will consider the different grounds on which public authorities can be stripped of unjust gains, and particular issues associated with claims for the return of taxes unlawfully demanded. In the law of contract, the course will consider various special rules that may apply to government contracts including immunities, and will consider the consequences where contracts are entered into without authority. The subject will also consider the history of law reform proposals that seek to make government compensate for ultra vires administrative action, and the role of ex gratia payments.

Principal topics include:

• The law of torts
  • Public authority negligence, including liability for regulatory failure, and of child protection agencies, police and emergency services
  • Misfeasance in public office
  • Malicious prosecution
  • Private and public nuisance
  • Trespassory torts including false imprisonment
  • Vicarious liability of public authorities
  • Statutory immunities and special defences for public authorities
  • Damages awards against public authorities including vindicatory damages
• The law of unjust enrichment
  • Grounds for seeking restitution against public authorities
  • Recovery of unlawfully demanded taxes
  • Special defences for public authorities
• The law of contract
  • Special rules regulating government contracts
  • Consequences of ultra vires contracts
• Compensation beyond private law
  • Law reform proposals for compensation for ultra vires administrative action
  • Ex gratia payments.

This subject will address a selection of the most significant and cutting edge issues in the law governing public administration. Importantly the subject will take a contextual approach, placing administrative law principles in the context of the administrative processes they are designed to regulate, and considering the role of law in the design and working of government administration. It will seek to consider cutting edge issues in administrative law not only through the lens of legal analysis but also from the perspective of public officials, who are the addressees of and must work with administrative law principles. The subject will focus on the law of Australia and other common law jurisdictions.

The subject is divided into three parts. Part one, on decision-making, will address the distinction and interrelationship between discretion and rules, including the use and legal status of government policy and official guidance; administrative procedures, including in terms of e-governance; and the place of good governance values in government rule-making, including values of transparency, accountability and participation. Part two, on judicial-executive relations, will consider government strike-back against judicial decisions, both in the context of judicial review and public authority liability, and the interplay between judicial review and government resource allocation. Part three, on ‘new principles, new challenges’, will critically examine and chart the implications for public administration of emergent doctrines such as proportionality, legitimate expectations and duties of consultation.

The subject will be of interest to lawyers with interests in public law, and of especial interest to lawyers working in or who advise government, and to anyone with an interest in how law frames and operates within public administration.

Principal topics include:

• Administrative decision-making
  • Administrative discretion and rules, with a case study on the use and legal status of administrative policy and guidance
  • Administrative decision-making procedures and the role of legal norms
  • Government rule-making and good governance values including transparency, accountability and participation
• Judicial-government relations
  • Government responses to judicial decisions and the impact of judicial decisions on public administration, with cases studies in judicial review and government liability
  • Judicial review and government resource allocation
• New principles, new challenges
  • Emergent doctrines and their implications for public administration, with case studies on proportionality, legitimate expectations and duties of consultation.

This subject will be delivered online in 2020 over the scheduled dates.

This subject studies the central mechanism for democratic accountability – elections. It adopts an interdisciplinary approach to underscore how this area of law is shaped by normative principles, the political process and practical considerations. The subject will be situated in the context where the dynamic interaction of diverse and powerful actors shapes the design and practice of such law.

The subject also aims to develop amongst students the critical ability to assess the strengths and limitations of the Australian version of electoral democracy. Integral to its aim is the comparative perspective of the subject where the examination of key questions will be informed by international standards and relevant examples from other countries, which may include Canada, India, Indonesia, South Africa, the United Kingdom and the United States.

Principal topics include:

• Why do elections matter? Democratic theories of elections and their critiques
• Which public officials should be elected? The case of judges
• Constitutions, elections and democracy
• What happens during elections? The election campaign, the institutional actors (political parties, third party campaigners, the media, electoral commissions and the courts)
• The voting process (compulsory voting, preferential voting, proportional voting)
• Electoral rights (right to vote, freedom of political association, freedom of political expression)
• The drawing of electoral boundaries
• Regulation of political parties
• Money in electoral politics
• Electoral law-making: the challenge of making democratic electoral laws in a party system
• The role of courts and electoral commissions in electoral law
• International standards in elections: is there a ‘best practice’?
• A case study in the limits of election law: lobbying and its regulation.

This subject will be delivered online in 2020 over the scheduled dates.

In the 21st century there are multiple levels of government, usually with a degree of constitutional protection, in many states across the world; and the numbers are increasing. The forms vary from federations to provincial or regional government to provision for special, usually asymmetrical autonomy. Multi-level government raises a range of conceptual and practical issues that this subject is designed to explore. In all its forms, it involves a departure to some degree from the assumptions and practices of unitary systems. The subject examines these from the perspectives of both design and operation, analysing the similarities and differences between the forms that multi-level government takes. In doing so, it canvasses topics that include democratic representation, the structure and operation of the public sector, the distribution of fiscal resources, the management of natural resources, judicial interpretation and constitutional change.

The two instructors in the subject, Michael Crommelin and Cheryl Saunders, have a wealth of knowledge in the field that is brought together in this innovative subject.

Principal topics will include:

• Forms of multi-level government
• Unitary states compared
• Constitutional frameworks
• Institutional design in multi-level democracies
• Distribution of fiscal resources
• Management of natural resources
• Administration in multi-level government
• Intergovernmental relations
• Judicial interpretation
• Multi-level government and the international legal order

Regulation has become a permanent feature of the way in which contemporary democratic economies, including Australia, are governed. There are few spheres of economic activity that are not subject to some form of regulatory oversight and control. Daily news programs rarely pass without some mention of a significant regulatory decision, proposed regulatory reform or allegations of some regulatory failure or scandal. For lawyers, dealings with regulators and regulatory regimes have become part of the staple diet of their work. Yet the practice of regulation is far from straightforward. Regulatory policy and practice has evolved considerably from its traditional origins in the form of ‘command and control’, accompanied by the growth of specific terminology and concepts that are likely to be unfamiliar to those other than regulatory technocrats. This subject provides an opportunity for students to develop an understanding of, and critically to evaluate, the basic tools, techniques and decision-making methodologies that are employed in regulatory design and practice. It will be of interest to both private and public sector lawyers who practise in regulated sectors of the economy, enhancing their understanding of how regulators go about the business of regulatory decision-making.

Principal topics include:

• Introduction: What is ‘regulation’ and ‘governance’?; the regulatory agency: institutional features, strengths and shortcomings; the rise of the ‘regulatory state’; regulatory regimes and the role of non-state actors
• Tools, techniques and instruments of regulation: command—traditional legal prohibitions backed by sanctions; competition—market based approaches; communication—information disclosure and publicity-based approaches; consensus (including self-regulation); code architecture and the use of ‘nudge’ techniques
• ‘New governance’ approaches to regulation: choice of Instrument; ‘hybrid’ approaches to regulation; responsive regulation, ‘smart regulation’ and its variants (including meta-regulation); algorithmic regulation, cost-benefit analysis and regulatory impact assessment and ‘better regulation’
• Enforcement and compliance: problems with rules; principles-based regulation; the role of the criminal and civil law; punitive civil sanctions (the Macrory Review); regulatory enforcement styles; national styles of regulation; private enforcement, third party monitoring and certification systems and the role of technological instruments for monitoring and control.
• Appraising Regulation: regulatory accountability; regulatory legitimacy: between democracy and expertise.

Royal commissions and other forms of public inquiries are used by all governments. Inquiries such as the Royal Commission into Institutional Responses to Child Sex Abuse, the Hayne Banking Royal Commission and the Covid-19 Hotel Quarantine Inquiry are a frequent response by government to a major issue or event. Most Australian governments also have standing bodies with inquisitorial powers. The Federal Government has a variety of standing commissions, such as the Australian Crime Commission and the Australian Securities and Investments Commission (ASIC). Nearly every state now has a corruption commission, and several have crime commissions and police integrity bodies, all with coercive investigative powers. Coronial inquests occur in every state and territory. Lawyers advising clients affected by these inquiries require a detailed knowledge of their procedural rules, administrative and constitutional law, procedural fairness, common law privileges and other rights.

This subject is designed to equip students to deal with such inquiries at any level, whether in government departments, the private bars, working as solicitors or in corporate law offices, or as legal advisers to corporations.

Principal topics include:

• Introduction to public inquiries
• Appointment and composition
• Supply of information
• Power to compel
• Limits on the power to compel, including public interest immunity, privilege against self-incrimination and privileges of parliament
• Application of administrative law, including procedural fairness and judicial review
• The role of counsel assisting
• Legal representation and assistance
• Contempt
• Reopening of completed inquiries
• Reform.

In the first half of the 20th century most civil actions were for causes of action not much affected by statute: trespass, negligence, libel and slander, breach of contract and the various forms of equitable suit. Most criminal prosecutions were for offences created by statute but whose elements were treated as identified largely by judge-made law. There were great codifying acts; intellectual property acts, facultative acts, and regulatory statutes, but judge-made law was of central and dominating importance. The second half of the 20th century saw the statutory cause of action emerge to prominence, the enactment of laws permitting modification of privately-made agreements, the creation of new rights and obligations and novel forms of criminal offence. Statute became the central and dominating form of regulation of rights and obligations. The proper construction and application of statutes always has been, but now more than ever is, an essential legal skill. This subject seeks to develop and refine those skills.

Principal topics include:

• Construction—a text-based activity but involving more than a dictionary in one hand and the text in the other
• The importance of the constitutional framework and other basic assumptions
• The search for meaning and the metaphor of intention
• The place of Interpretation legislation, including rights Acts
• The canons of construction, their use and abuse ('canons to the right of them; canons to the left of them; on into the valley of death')
• Ambiguity and its resolution, including the use of extrinsic materials
• Inconsistencies, repeals, amendment, consolidation and retrospectivity
• The legislative misfire
• Special rules for special areas
• Rules and regulations—power to make, construction and use in construing the legislation
• Overarching theories and descriptions of the construction process.

This subject examines contemporary developments in administrative law and how they apply to the Tax Commissioner and the taxpayer. In the last 15 years the High Court has rapidly developed administrative law principles that apply to constrain government officials’ powers and duties, in taxation, immigration and other jurisprudence. This subject will draw upon those principles developed across various types of government activity and apply them to the Tax Commissioner’s exercise of powers.

Principal topics will include:

• The principle of legality and limits on the powers of the Commissioner of Taxation
• Jurisdictional error, natural justice, failure to carry out legislative purposes, relevant and irrelevant considerations and improper purpose
• The general power of administration
• The process of seeking review
• Review of General Interest Charge remission decisions
• Garnishee orders
• Seeking relief and remedies

This highly topical subject analyses the rights of Indigenous peoples in Australia, Canada, the United States and New Zealand. Topics discussed include Aboriginal title and the doctrine of discovery, treaties, land and resource rights, self-determination, and Indigenous families and justice. The subject will be taught from a critical perspective, comparing and assessing the treatment of Indigenous rights in the four jurisdictions. In exploring these issues, the subject will also examine aspects of legal pluralism, and assess a variety of normative and political justifications for Indigenous rights.

Principal topics include:

• History of the concept of Aboriginal title and the doctrine of discovery
• Concepts of sui generis agreement-making between Indigenous peoples and governments
• Implications of distinctions between government obligations and Indigenous rights
• Overview of current practice
• Law applicable to Indigenous entities
• Legal framework for Indigenous governance
• Human rights and their influence on Indigenous rights
• Remedies.

Adequate, reliable and sustainable supplies of energy are crucial to modern societies, and their assurance demands the close and continuous involvement of governments. This subject explains the challenges—affordability, security of supply, safety, control of monopoly, sustainability in an age of global warming—that the economic and technical characteristics of different energy sources present to governments in Australia, and analyses the regulatory tools that they have at their disposal for responding to such challenges. It shows how the law can function both as an essential vehicle for such regulation and as a constraint on its content. The lecturer is a leading international authority on oil and gas law and has published extensively in the field of regulation.

Principal topics include:

• The nature of regulation, its development in Australia and its relationship with law
• General explanations and justifications for regulation
• The techniques of regulation
• Regulatory issues posed by the supply of different types of energy:
  • Mineral energies: coal, petroleum and uranium
  • Network energies: electricity, gas
  • Renewable energies
• The Australian federal environment for energy regulation. Two or more case studies of Australian energy regulation:
  • Electricity and gas: from state monopolies to regulated national markets
  • Mined energies: securing effective exploitation, managing resource conflicts
  • Renewable energies: regulatory incentives
• Cross-cutting issues in energy regulation:
  • Regulatory authorities
  • Forms of regulation: prescription versus goal-based regulation; discretion versus rules; legislation versus contract
  • Regulatory review and evaluation.

Environmental law deals with pressing legal and social issues within Australia and internationally that range from biodiversity protection to waste reduction. This subject provides an overview of fundamental environmental law concepts and principles, such as the precautionary principle. It charts the evolution of Australian environmental law in response to global environmental challenges, such as climate change, as well as national regulatory reforms. The subject equips students with a thorough grounding in environmental impact assessment law by reference to the Environment Protection and Biodiversity Conservation Act 1999 (Cth). It examines the regulatory tools and approaches relevant to pollution control and ecological protection– including market mechanisms and offset models. This subject introduces international environmental law; dealing with issues such as trans-boundary harm and World Heritage protection, that have shaped Australian environmental law.

Principal topics include:

• The scope of environmental law – nationally and internationally – including transboundary regulation.
• The multidisciplinary character of environmental law and regulation that needs to respond to complex, multilevel environmental problems.
• The diversity of environmental law approaches from the common law through direct regulation to market measures and community engagement.

These themes are illustrated by case studies in the following areas:

• Environmental law: Principles and concepts
• Environmental actors, including public interest litigation with a focus on biodiversity protection
• The procedures and substantive law governing impact assessment and development approvals.
• Legal and regulatory tools used in environmental law, including duty of care concepts in pollution laws.
• The interaction of law and science, with a focus on the precautionary principle
• Implementation, compliance and enforcement in Environmental Law
• International environmental law, including biodiversity protection, world heritage cases and climate change governance.

The application of international human rights law (IHRL) in situations of armed conflict is one of the most contested areas of contemporary international law. The controversy begins with the identification of the applicable branch (or branches) of law. Are states only bound by international humanitarian law (IHL) or are they also bound by their human rights obligations? This points to other areas of dispute: to what extent do states owe human rights obligations outside their borders? Can states derogate from IHRL in armed conflict? Debates also surround issues such as whether non-state armed actors are bound by human rights law and whether states owe human rights obligations to the members of their armed forces while on military operations. We will explore these issues and more, examining the gaps that exist between IHRL jurisprudence and the practice of militarily active states, including Australia.

Principal topics include:

• What are human rights? How have human rights claims arisen in armed conflict situations?
• What is an international/non-international armed conflict? What is a military occupation? Where does IHL apply when an armed conflict exists? Why might a state wish a situation to be (or not to be) characterised as an armed conflict?
• In what circumstances does an armed conflict enable a state to derogate from its human rights obligations? Which obligations can be derogated from?
• What is the current jurisprudence on the applicability of human rights in armed conflict (with particular emphasis on relevant case law of the European and Inter-American Courts of Human Rights)? Has the changing nature of armed conflict resulted in changes in emphasis? To what extent has this case law been accepted by states?
• How and when do human rights apply extra-territorially (that is, when is a state bound by human rights law outside its national borders)? How might this apply to Australia’s international military deployments?
• How might human rights law assist in addressing issues such as gendered violence, weapons such as drones, or targeted killings?
• Do non-state armed actors owe human rights obligations? Do international organisations engaging in violence have human rights obligations?
• Does a state have human rights obligations towards its own military personnel when deployed on operations?
• To what extent have human rights featured in justifications for the resort to violence within and across state borders? What is the relevance of notions such as ‘the responsibility to protect,’ ‘human security,’ or ‘protection of civilians’?

This subject will be delivered online in 2020 over the scheduled dates.

Since 11 September 2001, there has been a global trend towards enacting new laws and adopting new measures against terrorism, reflected in developments on the national, regional and international levels. Many such counter-terrorism laws and measures have raised questions about the nature of human rights law, and the extent of its adaptability in face of security imperatives. Others have revealed clear human rights violations and exposed the fragility of respect for the rule of law. Responses by the courts and international mechanisms have had a role to play in redressing this reality in various ways, but they too have met challenges. This subject addresses the international law framework within which responses to terrorism, and to counter-terrorism, unfold. It considers human rights law in the context of other relevant areas of international law and practice, such as humanitarian law and the law on peace and security. It examines legal questions not in abstract but by reference to examples from practice, and in light of the many real-life challenges to giving effect to the law in the security context today. It provides a stock-taking review and questions the human rights implications of global counter-terrorism practice.

Principal topics include:

• What is ‘terrorism’ and how does it fit within the framework of international law?
• Do terrorists violate human rights, and can they be held accountable?
• Which human rights are affected by counter-terrorism measures by states and how they are affected in practice?
• Is the prohibition against torture absolute, and what have been the challenges in practice since 9/11?
• How has the criminal law adjusted, and expanded, in recent years and what are the implications?
• Have restrictions on freedom of expression, association and assembly been legitimate?
• How has terrorist listing and sanctions against individuals and entities developed and what human rights issues arise?
• What implications are there for refugee and immigration law in the era of terrorism?
• What is the phenomenon of ‘foreign terrorist fighters’ and legal responses to it?
• How has the right to privacy been eroded in the name of countering terrorism, and when is surveillance lawful?
• What are strategic approaches to preventing and combating terrorism, and what are the long –term implications of trends in counter-terrorism practice to date?

Human rights law is a subject of growing importance with wide implications, for governments and business. This subject considers how human rights law can be used to regulate private power (the power of the employer) and a private law relationship (the contract of employment) in an era of globalisation and transnational corporations. It examines, in particular, the question whether labour rights can be regarded as human rights, and considers the main international instruments designed to regulate the workplace.

The main focus will be the four core principles of the International Labour Organisation, concerned with the right to freedom of association, protection from discrimination, the elimination of forced labour, and combating child labour. Consideration will be given to how these and related obligations can be enforced against governments, but also against corporations. Different instruments of corporate accountability are fully explored, and attention is paid to how business can keep on the right side of human rights standards, and the risks of failing to do so, with reference to the law and practice of Australia and other common law jurisdictions.

What is the relevance of human rights at work for governments and corporations in Australia, whether doing business here or overseas? What are the ‘risks’ of human rights at work, legal or otherwise? Conversely, how can trade unions mobilise around human rights at work to advance the interests of their members?

Principal topics include:

• The nature of protection of labour rights in international and domestic law
• The scope and relevance of international labour standards for domestic law
• The role of hard and soft law mechanisms and the collapse of the hard/soft law distinction
• The application of human rights principles to private law relationships in selected areas.

When the Queensland Parliament recently enacted a Human Rights Act, it became the third State or Territory to introduce a statutory human rights Act in Australia. The Victorian, ACT and Queensland statutory human rights Acts and Commonwealth Human Rights (Parliamentary Scrutiny) Act 2011 form part of the domestic human rights legal protections in Australia. This subject will take an in-depth look at the operation of the Victorian Charter of Human Rights and Responsibilities, the ACT and Queensland Human Rights Acts and the Commonwealth scrutiny of legislation for compatibility with human rights, with a focus on how these instruments have operated in practice. The focus of this subject is on these particular statutory human rights Acts.

The subject lecturers, Kylie Evans and Alistair Pound are barristers with significant expertise on the Victorian Charter, having appeared in numerous human rights cases in Courts and tribunals.

Principal topics include:

• The debate over Bills of Rights in Australia and the national human rights framework
• The obligations on public authorities imposed by human rights legislation
• Applying statutory interpretation provisions in human rights legislation
• Statements of compatibility and legislative scrutiny
• Rights protected by statutory human rights Acts including the economic rights protected in the ACT and Queensland Human Rights Acts
• The use of human rights Acts in legal proceedings
• Implementation by public authorities of human rights Acts

The 1948 Universal Declaration of Human Rights has been heralded as a common ethical standard of humanity and helped spawn a global human rights movement. But what impacts have international human rights law, institutions and actors had in practice? Human rights violations are not always the product of a linear relationship between oppressor and victim, but are rooted in a complex structure of power relations in the political, economic and social spheres. How adaptable, and how successful, has the global human rights movement been in challenging underlying structures of exclusion and oppression? How can positive change be achieved in practice, and what expectations can reasonably be placed upon human rights law, institutions and actors in this regard?

This subject applies an interdisciplinary approach to the examination of these questions, linking theoretical debates to analyses of practical implementation challenges. Special attention is given to the 2030 Sustainable Development Agenda, given the high expectations that have been placed upon it and the significant investment so far by the human rights movement, and to normative and human rights policy frameworks and strategies of engagement with business enterprises and international financial institutions such as the World Bank and International Monetary Fund.

Dr Darrow led the research and advocacy of the Office of the United Nations High Commissioner for Human Rights (OHCHR) in connection with the 2030 Development Agenda and is currently responsible for its partnerships and policy engagement with international financial institutions in Washington DC. He has worked in private legal practice, academia, the UN Committee on the Elimination of Racial Discrimination, and in the Human Rights Branch of the Attorney-General’s Department (Cth), and has consulted for a range of international organisations including the World Bank and UNICEF. He has published extensively in the fields of international human rights law, anti-discrimination, development, and international organisations.

The field of international human rights law is today composed of a multitude of legal instruments, implementation bodies, special procedures, human rights NGOs and transitional justice mechanisms. This subject provides the opportunity to examine this field in many of its dimensions, equipping students to navigate the system and critically assess its fundamental features. It will be of interest to all students who want to develop a detailed understanding of how the international human rights law system operates, including those with limited or no background in the area. The two lecturers have significant experience across a diverse range of topics and issues within international human rights law, which they draw upon to create an engaging and thought-provoking subject.

Principal topics include:

• Human rights and the challenges posed by state sovereignty and national security
• The contested universality of human rights
• The international institutional framework for the protection of human rights, with a special focus on the Human Rights Council and treaty monitoring system
• The interpretation and application of selected rights from the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)
• Domestic measures for the implementation of human rights, such as judicial implementation of economic, social and cultural rights
• The norm of non-discrimination as it relates to race, gender, sexual orientation and gender identity
• The contribution of truth and reconciliation commissions to the protection of human rights
• Human rights law relating to refugees and asylum-seekers
• The challenges posed by economic globalisation.

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Issues concerning children, whether they arise at the international, regional or local level, are increasingly being examined from a human rights perspective. Much of the momentum for this movement has been generated by the United Nations Convention on the Rights of the Child (CRC), which was adopted by the UN General Assembly in 1989, and has been ratified by every state in the world except the United States and South Sudan. This subject is designed to provide students with an understanding of the CRC and the idea of a human rights-based approach to matters involving children. It will be of interest to anyone who works in areas that impact on children, either directly or indirectly, at the international, regional or local level. The lecturer has extensive networks with civil society, international bodies and government agencies that he draws on to provide an appropriate blend of academic and practical content.

The subject consists of two parts. Part one involves a general discussion of:

• The notion of children’s rights
• The international framework for the protection of children’s rights, with particular emphasis on the United Nations Convention on the Rights of the Child
• The factors that impact on the implementation of the Convention, both in Australia and overseas.

Part two involves an examination of specific issues relevant to children and how the Convention and a rights-based analysis can be used to respond to these issues. The issues will be drawn from areas such as:

• Sexual exploitation, including trafficking, prostitution and pornography
• Child labour
• Juvenile justice
• Child refugees
• Violence against children
• Children in armed conflict
• HIV/AIDS and children
• Child poverty and homelessness.

This subject explores and examines the international legal regime for the protection of refugees. The essential premise of the subject is that refugee law should be understood as a mode of human rights protection, the viability of which requires striking a balance between the needs of the victims of human rights abuse and the legitimate aspirations of the countries to which they flee. The primary objective of the subject is to enable students to develop a comprehensive understanding of the international legal regime for international protection – the basis for being granted protection in 147 countries, including Australia. The subject will situate Australian refugee law and policy within the context of Australia’s international obligations.

Principal topics include:

• History of the international system of refugee protection
• Legal and institutional framework of international legal protection
• The implementation of the Refugee Convention in Australian law
• Refugee status determination: domestic and international dimensions
• Responsibility sharing and shifting
• Principles of treaty interpretation applied to refugee law
• The definition of ‘refugee’ in international law
• Exclusion from refugee protection.

This subject will be delivered online in 2020 over the scheduled dates.

This subject seeks to understand how judges arrive at judgments and thus the complex question of adjudication. By examining key elements of the vast literature that has analysed the process of adjudication, the course attempts to develop the conceptual tools by which each student can approach the reading of judgments of courts. The subject then intensively discusses a number of important cases from various jurisdictions – the United Kingdom, the United States, Australia, South Africa and Canada. By applying the insights learned from the earlier conceptual discussion, the course examines the judicial mind that has given rise to the judgments so studied. In this way, the subject talks to practitioners who litigate and can reflect on the means of help shaping the judgment they so seek, as well as to those lawyers who wish to develop a comprehensive understanding of both the theory and practice of adjudication.

Principal topics include:

• A critical reading of key texts – Hart, Raz, Fuller, Dworkin, Habermas, Derrida and Kennedy
• Language, linguistic theory and the law
• Reading judgments (Australian and comparative) – both in the area of constitutional/human rights law and private law
• The impact of political emergency upon the judicial function/adjudication.

This subject examines the law applicable to planning and development projects within Victoria. A detailed analysis of the Planning and Environment Act 1987 (Vic) and its application will be supplemented by an examination of the various political and economic aspects that are at play in the Victorian planning regime. The subject will also address the interaction of the Victorian planning regime with a number of other statutory processes relevant to the development of land within Victoria, such as those contained within the Environment Protection Act 1970 (Vic), the Subdivision Act 1988 (Vic), and the Building Act 1993 (Vic).

A key component of the subject will be a case study concerning a hypothetical development proposal.

Principal topics include:

• The conceptual framework for planning law in Victoria
• Evaluation of the various components of the Victorian planning regime, focusing on the operation of the Planning and Environment Act 1987 (Vic) and the Victoria Planning Provisions
• The role of key actors under the Victorian planning regime (such as the Victorian Minister for Planning and municipal councils) and the key processes established under the regime
• The review of decisions made under the regime (both in the Victorian Civil and Administrative Tribunal and the Supreme Court of Victoria) and the powers available to relevant planning authorities under the Planning and Environment Act 1987 (Vic)
• Particular problems that arise in the Victorian planning system such as the fair and equitable distribution of undesirable land uses, the limitation of urban sprawl within metropolitan Melbourne, the appropriate level of public participation in decision-making processes, and the need to deliver sound planning outcomes in a timely and efficient manner
• The interaction of the Planning and Environmental Act 1987 (Vic) and the Building Act 1993 (Vic).

This subject will be delivered online in 2020 over the scheduled dates.

This subject deals with the body of law and practice that applies to states as they emerge from conflict and try to build strong, prosperous and responsive communities. It lies at the intersection of several bodies of law including international law, international humanitarian law, international human rights law and domestic constitutional law. Many of the issues with which it deals are at the cutting-edge of these fields: the extra-territorial effect of constitutional law; the possibility of a ‘lex pacificatoria’ to govern the ambiguous character of intra-state peace agreements; the legitimacy of constitutions developed with international assistance; the notion of transformative military occupation. The two teachers in this highly innovative subject bring different bodies of expertise to bear on it. Professor Bruce Oswald is an international and international humanitarian law specialist; Laureate Professor Cheryl Saunders works in the area of comparative constitutional law. Both have practical experience of aspects of post-conflict state-building, which informs their approach to teaching and research in the field.

Principal topics include:

• The concepts inherent in post-conflict state-building
• International humanitarian law and the law of occupation
• Current trends in peace-building
• The relevance of constitution building to post-conflict state-building
• Role and use of human rights to protect vulnerable groups
• The relevance of context in post-conflict state-building programs
• Role and contribution of civil society.

Privacy has been valued for centuries but now there is a resurgent interest in its protection as a result of new technologies, changing social norms and a rise of markets focused on the commodity value of information. Overlapping with the resurgent interest in privacy is a related concern about the management of data flows, especially on the part of government agencies and business organisations. The legal frameworks that deal with privacy and data protection have a long history but are coming under pressure to adapt to a more complex modern environment.

Privacy and data protection experts Professor Megan Richardson and Karin Clark explore these issues. They pay particular attention to the scope and nature of privacy protection as well as appropriate limits and exceptions, the ongoing pressures for law reform, and the practical operation of privacy and data protection laws in Australia and comparable jurisdictions.

Principal topics include:

• What is privacy?
• Conceptual and legal definitional issues
• International and comparative privacy and data protection regimes
• Protection of privacy in general law in Australia and comparable jurisdictions
• The Privacy Act 1988 (Cth): regulation of personal information held by the private and public sectors
• State/territory (especially Victorian) legislative regimes for the regulation of personal information
• Current topics in privacy law such as privacy and the media, privacy and health information, online privacy, telecommunications and surveillance privacy
• Current reform inquiries and proposals and likely reforms.

This subject will be delivered online in 2020 over the scheduled dates.

Water law and natural resources management are fundamental to human society, environmental protection and economic productivity. Legal rules around water are found in all societies. Water is both a human right but also a source of conflict – that law seeks to regulate. There is increasing pressure on water globally, and extreme events such as drought, heighten tensions around water allocation in Australia and many other countries.

The subject considers the international laws governing freshwater, including trans-jurisdictional water governance for major shared river systems. It examines contemporary trends in water law and governance such climate change impacts on water availability. It provides an overview of common law rules around water allocation and water quality. There is a major focus on indigenous water rights and rights for rivers.

The subject provides an in-depth understanding of the federal water legislation governing the Murray-Darling Basin and the Victorian water legislation- including water trading. It introduces urban water laws, with a focus on water pollution controls. It examines the innovative reforms around environmental water and the ecological protection of rivers and groundwater. It provides a case study of the impacts on groundwater due to mining and fracking.

Principal topics include:

• International law and policy governing water, including relevant treaties and conventions, and case law
• Water rights: including human rights and Indigenous peoples’ rights
• Common law rules for surface and groundwater
• The Australian national water law reform model
• The Water Act 2007 (Cth), including water trading and water planning
• Environmental water law and regulation – including the Environmental Water Holders
• Victorian water laws, including water authorities and governance models
• Water quality: addressing point source and diffuse water pollution
• Integrated catchment legislation
• Urban water laws, including water-sensitive urban design.